Employee Training Programs

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We are honored to have been named by Working Mother Media and Flex-Time Lawyers as one of the 50 best law firms for women.  This is the fourth time we have been named to the list.

Our Firm works very hard to insure the advancement and retention of all attorneys, but we do have targeted initiatives, such as our Women’s Initiative, to focus on female attorneys. The Women’s Initiative, along with the Diversity Committee, serve as resources and advocates for minority lawyers at the Firm.

Diversity initiatives such as these can have many positive impacts on companies, including improving employee morale, decreasing discrimination charges, and reducing employee turnover. Studies have also shown that having a diversity program improves a companies bottom line and can increase customer-base as customers seek to find business partners whose work forces match theirs in terms of diversity.

Diversity programs are not without critics, however.

Employers who are thinking about setting up diversity initiatives do need to be careful that they are not exposing themselves to claims of reverse discrimination.  One of the keys to this is insuring that all employees, regardless of whether part of the majority or minority, understand the importance of these initiatives for the company as a whole.  Another key is to consult with employment counsel as to the lawful interest groups that can be established without violating discrimination laws.

Employers who are looking for some practical suggestions as to human resources policies that help manage diversity can also review the EEOC’s Best Practices of Private Sector Employers for suggestions.

Last week, the EEOC reached a $1.02 million settlement with Vail Run Community Resort Association, Inc. and its management company, Global Hospitality Resorts, Inc.  The settlement came after the EEOC sued based on its allegations that a housekeeping manager, Omar Quezada, repeatedly sexually harassed female subordinates.  The settlement will resolve the claims of 8 female employees.

This case certainly caught my eye because of the size of the settlement, but also because of the other obligations set forth in the consent settlement decree.  Pursuant to the settlement, there are some relatively minor “extras,” for example, giving favorable references and apology letters to the former employees.

The settlement also requires regular training on harassment and discrimination and, more unusually, the appointment of a monitor to assess compliance with the decree.  This is not a simple one-off check-in to see if the the companies are complying with the settlement.  Instead, the companies will have to pay an outside monitor for five years.

22207527_sUnder the settlement, the Spanish speaking monitor will insure that semi-annual training is conducted and will regularly be interviewing employees to determine if harassment or discrimination is occurring.  The monitor will also have to review any and all charges of discrimination during this time period.

If this were a Roadrunner cartoon, that outside monitor would be represented by a 1 ton weight hanging over Wile E. Coyote’s head.  Granted, there are rather serious allegations in the complaint and the supervisor in question has already been criminally convicted of unlawful sexual contact and felony extortion, so this is not your usual discrimination claim.

I think most employers would not relish having a monitor coming into the workplace and speaking with employees.  It may seem counter-intuitive but this is why you want to encourage employees to come to you with complaints, no matter how minor.  If you have an open door policy and then actually investigate the complaints that arise, you, hopefully, are dealing with much less severe situations and resolving them without the employee ever needing to get the EEOC involved.


33190898_sI recently read an article that Wawa, Inc. has been sued by a former employee who alleges that she was discriminated against on account of being gay.  What was interesting about the article was what she alleged about how the harassment supposedly started.

The employee alleges that she participated in Wawa’s Gay Straight Alliance.   She says that as soon as her supervisor was made aware of her involvement with the Alliance that he began punishing her — taking away her flex benefits and changing her work location.  The employee also claims that he made fun of National Coming Out Day.

What is alleged in the complaint is a fairly common description of bullying or harassment that we see in complaints.  What makes this unusual is that one of the reasons she was allegedly bullied was on account of her participation in Wawa’s diversity program.  This program seems designed to combat prejudices and to work towards making a more inclusive environment for homosexual employees.

If this complaint is true, then at least one manager did not get the message that this was an important initiative to the company.

Diversity programs can be met with resistance by some employees who believe that the diversity program is giving minority employees more benefits than them, rather than simply leveling the playing field.  Nothing exemplifies this more than the reaction by some to the Black Lives Matter campaign that has been posted in social media.  In response to the campaign, some reacted by posting signs like All Lives Matter.  Clearly, those who posted these signs felt that to say Black Lives Matter meant that other lives did not matter as much, rather than seeing it as an attempt to address perceived racism against black people.  Perhaps if the message was Black Lives Matter Too, people might have understood the message better.

How the message is communicated definitely matters, but it is only one obstacle to a successful program.  For diversity programs to truly work, there must be a commitment to them from the very top of the organization.  There also should be outreach and training to all employees to explain the initiative, demonstrate that the company will not tolerate discrimination, and combat perceptions of reverse discrimination.

There has been some immediate fallout from the Supreme Court’s gay marriage decision in Obergefell v. Hodges.  The decision has become a lightning rod for several Republican candidates who have denounced the decision on religious grounds.  Some, such as Ben Carson, have suggested that Congress pass a law protecting people’s religious views.  Of course, there are already several laws protecting people’s religious views, the First Amendment and the Religious Freedom Restoration Act of 1993 to name a few, but I digress.

19321926_sThe bigger issue and one everyone seems to be forgetting is that these types of “religious belief” arguments to justify discrimination have already been rejected by the Supreme Court.  The Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. seems to have opened the door for employers to argue that their religious beliefs conflict with certain legal requirements (in that case providing insurance coverage for contraception, but easily analogized to gay marriage).  However, in Hobby Lobby, Justice Alito specifically noted that religious beliefs could not be used to justify discrimination:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. . . . Our decision today provides no such shield.  The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

It is true that federal law does not explicitly protect sexual orientation.  However, as we have reported the EEOC has become increasingly focused on same-sex harassment and sexual orientation discrimination as a form of gender discrimination.  Further, many state and local anti-discrimination laws do define sexual orientation as a protected class.

This can be a confusing area for employers since Title VII and many state and local laws require that an employer accommodate a sincerely-held religious belief.  Quite simply, employers cannot justify an employee’s discrimination against gay people because homosexuality is against that employee’s religious beliefs.  Employees must still comply with anti-discrimination laws even if they have a religious objection to homosexuality.

38570848_sIn the vein of a shameless personal plug, I will be speaking as part of a panel in an upcoming Strafford live webinar, “Accommodating Pregnant Workers After Young v. UPS: Navigating New Obligations Absent Clear Court Guidance” scheduled for Wednesday, July 15, 1:00pm-2:30pm EDT.

Our panel will discuss how to reconcile the Court’s vague new standard with EEOC guidance and differing state laws regulating workplace accommodation of pregnancy and pregnancy-related conditions, and offer best practices for crafting workplace policies that avoid Pregnancy Discrimination Act violations.

We will review these and other key issues:

  • What factors might constitute legitimate, nondiscriminatory, nonpretextual reasons for denying an accommodation?
  • Under what circumstances must employers accommodate pregnant employees?
  • What steps should employers take when engaging in the “interactive process”.

I hope you’ll join us.

For more information or to register >

Or call 1-800-926-7926 ext. 10
Ask for Accommodating Pregnant Workers After Young v. UPS on 7/15/2015
Mention code: EA1DU2-4TO1AY

While it sometimes may not feel like it, there is a whole world happening outside of the four walls of your company.  Outside of those walls, events take place that capture the attention of the public and become a natural topic of discussion.  Take this week for instance, when civil unrest in Baltimore dominated the news cycle and touched on the undoubtedly sensitive issues of policing, class, and race.

Copyright : Blend Images

They don’t call these events “water cooler moments” for nothing- your employees no doubt discussed the compelling television images they saw with coworkers in the areas where they congregate.  Being realistic, this is not something that any employer will be successful in stopping.  However, a failure to manage the time, place, and manner in which those opinions are expressed may give rise to an employee feeling as if they are being harassed, even if the comments are not directed at them.  This is especially true when issues that touch upon topics like race are involved.  You should take some simple steps to ensure that no employees later allege that they were subjected to a hostile work environment based on the expressed opinion of colleagues.

First, let all your employees know that if they are uncomfortable with the opinions expressed by their colleagues, they can come to management to talk about those feelings.  More often than not, an employee who feels aggrieved by such comments can be assuaged simply by talking to a management employee who will listen to the complaints and speak to offending employee(s).  If your employee handbook does not set forth a mechanism to report such complaints, you have bigger problems than an employee who is unhappy.

Further, ask your employees to confine conversations that touch on sensitive topics to their work station (if they have an office, even better!)  This will allow individuals to still express their opinions and lessen the chance it is overheard by colleagues not receptive to such opinions.

Finally, hold your supervisors and management employees to a higher standard.  Most harassment cases premised on a hostile work environment stem from the conduct and words of supervisors, so provide them with training on what and what not to say in the workplace.

While you have no control over the opinions of your employees, you do have some power to manage the ways in which those opinions are expressed through simple training.  Like so many other issues in employment law, an ounce of prevention is worth a pound of a cure.

37639916_sI just returned from a vacation to France.  Upon my return and hearing where I traveled to, a lot of people wanted to know how the trip was.  They also wanted to know something else — were the French rude?  With the exception of one person who worked at the airline ticket counter who was rude, which I attributed to the fact that she was an airline employee and not that she was French, everyone could not have been nicer to me while I was in France.  This is true despite the fact that my knowledge of French consists of being able to say hello, goodbye, please, thank you and where is the bathroom.  Nonetheless, I found the French people to be willing to help and ignore the fact that I was butchering their language.

It seems that it is a rather common stereotype in the United States that the French, particularly the Parisians, are rude.  My experience was so different that it got me thinking about stereotypes and how pervasive those beliefs can become.  It also got me thinking about how employers must be prepared to combat these stereotypes on a daily basis.  In my experience, most employers who have harassment policies do a good job of setting out what is prohibited sexual harassment, but they may forget to focus their policies and training on other types of harassment and discrimination that may occur based upon other protected classes like national origin.

Good harassment and discrimination policies should make clear that discrimination based upon membership in any protected class as defined by federal, state or local law, will not be tolerated.  Training should also cover more than sexual harassment and refer to discrimination based upon national origin, marital status, race, religion, etc.  This is not only a good idea from an employee relations standpoint but can have important benefits in a litigation.

I have had plaintiffs try to parse language of discrimination policies that focused almost exclusively on sexual harassment to say that they were unaware that discrimination based on another protected class was prohibited.  They have also parsed policy language to say that they thought the complaint procedure only applied to sexual harassment claims.

So, today I have two suggestions for you:  1) review your harassment and discrimination policies to insure that they cover the protected classes in the jurisdictions in which you operate, and 2) plan a trip to France — the food is amazing, the culture and history interesting, and the people are nice — no really, they are nice.

“Oh Wow, You Look So Pretty I Can’t Even Concentrate” was the title of a post we wrote on August 9th, subtitled:  “Sexual Banter Or Sexual Harassment?”

See: http://employmentdiscrimination.foxrothschild.com/2014/08/articles/sexual-harassment-1/oh-wow-you-look-so-petty-i-cant-even-concentrate-mere-banter-or-sexual-harassment/

sexual harassment : office sexual harassment Stock Photo

We decided to survey the attitudes towards “sexual banter” and sexual harassment” in different countries, and began with this article from South Africa.  We received a record number of comments, and wrote further.

We noted that “We just read an article which began ‘Unwelcome groping, or a promise of a better job in return for a kiss, clearly amount to sexual harassment.  But what about comments like ‘Oh wow, you look so pretty, I can’t even concentrate,” or ‘You look sexy today?’”

We asked:  “Is this sexual harassment?  Harmless banter?  The answer is important to HR people, employers and employees.”

The article was from South Africa’s Times Live and, as we reported, echoed a few posts which we did about “sexual banter” some time ago.  We began with a quote from Howard Levitt of the Financial Post, who said that “The line between sexual banter and harassment can sometimes be indistinct, even blurred. But crossing it is costly.”

We then asked “How about when the comment does not rise to even mere banter but is only a casual remark or even simply a workplace compliment?   Are these comments safe or taboo?”

water cooler gossip : Business employees gathered to get a drink of water and gossip. Isolated on white.

We also quoted Leanne Italie, writing for the Associated Press and published in Rocky Mount Telegram, who also asked “Are workplace compliments focused on looks or other personal details like dress ever OK?   Is the alternative a more sterile professional life?   When do such remarks rise to actionable harassment, or become worthy of a friendly rebuff or a trip to human resources?”   She cited to experts who suggest that “tone, context and a pattern of behavior are everything when it comes to unwanted remarks.”

A View From Wales

And on August 31st, we wrote about “A Brouhaha In Wales Over Workplace `Banter,`” regarding an article in WalesOnline which reported on a local story and asked a local Cardiff attorney “when [does] banter go[] too far and become[] discrimination?”

Cardiff attorney Darwin Gray discussed this issue, and advised that “There is no hard and fast rule, and it’s a very fine line between ‘banter’ and discriminatory/potentially unlawful comments. However, generally, if the comments are likely to offend someone, especially where they are linked to a ‘protected characteristic’ (defined in the Equality Act 2010 as things like race, sex, age, disability, religion, sexual orientation, gender reassignment) then they have probably crossed the line.   So basically, the advice is to pause and think about how comments could be perceived by others, especially when putting comments in writing (e.g., emails, texts).

Remember that emails, for example, are permanent and can always be recovered.  It’s important that an employer doesn’t just ignore things as said employer does not want to be seen to be tolerating / encouraging such comments.”

A New Post From New Zealand

A blog post by the New Zealand law firm of Duncan Cotterill is the latest to have caught our eye concerning “the issue of inappropriate conduct in the workplace, and how some behaviour, even unintentionally, can be offensive and unwelcome to others at work.”


“[How can you] tell the difference between harmless joking and banter and unlawful harassment and bullying, asks the author, who then answers “The former is often welcome and can help boost collegiality and culture. The latter can have a devastating effect on the workplace, create significant legal risks for an organisation, not to mention result in significant loss of productivity, plummeting staff morale and high turnover.”

Their takeaway (at least as we read it):  “Chief executives and managers set the tone and the culture and lead from the top in terms of appropriate conduct. If in doubt as to whether particular conduct is appropriate, it is generally best to err on the side of caution. … The important thing to remember is that it is not the intent of the person making the comments or jokes that matters. It is how they are received and perceived by others. That makes harassment very much a subjective issue and can sometimes make it difficult for individuals to understand where the line between appropriate and inappropriate conduct lies.”

One Takeaway

As Welsh attorney Gray said:  “It is advisable for an employer to have an internal policy on equal opportunities and diversity – setting out what is acceptable and unacceptable conduct. That policy should be communicated clearly to all staff so that they are clear of the conduct/behaviour expected of them.”

As we wrote before, “This issue, and all of its many facets, is of great significance if progress is to be made in understanding and curbing workplace harassment.”


Last week’s post about blatantly discriminatory job ads in New Zealand elicited a number of comments from folks who could not believe that such ads were actually published.  To remind you, these were some of  the ads:

* Young and vibrant waiting staff wanted

* We’re looking for vibrant salespeople with a young, passionate energy

* If you’re a motivated, talented young marketer

* We’re on the hunt for young, fit and competent carpenters for immediate starts

* Young person willing to learn – mechanic technician

Reader Comments

To those of our readers who were surprised — even shocked — at such ads, other readers provided examples from their own practices or corporate experiences which are truly “surprising.”

Read on.

Louise Walker, a Solicitor in Glasgow, UK:

“Helpful article Richard. If an individual has the skills and qualifications required to carry out a job, then their age should not matter. Employers would be well advised to take care when placing adverts to ensure they are not exposing themselves to a claim for discrimination.”

Ed Skinner, an HR expert in the Cincinnati area:

“Amazing … in this day and age! Might as well open the checkbook for a LARGE settlement.   Human Resources Professionals in the United States are less likely to commit that error!”

David Gabor, a Boston attorney:

“Ed, I wish that were true. I recently had a case in which the interview notes contained comments such as “sexy but married….too bad.” “Not my type. Not blond.” “Too skinny” “Pregnant … no way!!!” “Hot and single”

Guess which one got the job? Shortly thereafter she sued for sex harassment. Small wonder.

Worse … Head of HR was in the interviews with the Director!”

Ed Skinner:

“Wow. Bet those two were dropped into HR from some other discipline. Couldn’t have been trained in HR ! I hope. Makes one wonder doesn’t it.”

David Gabor:

“The training received in HR is superior. Sadly, performance does not always follow. Human nature often rears its ugly head.”

Lisa York Bowman, an attorney in Atlanta:

“I recently had a case where the interview notes written on the back of the application were similar to those described by David, despite the superior training that took place within the company.”

Dana Pearl, an EEO/HR consultant in Chicago:

“A client of mine had to fire their plant manager who had attended two of my training programs over a few years, and one of another contractor, because the guy accepted an employee’s offer to ‘service’ him in his car after work.  She turned around and filed a sexual harassment charge. The manager said it was mutually consensual.

Stupid is as stupid does, and no amount of training is going to make someone behave.

hostile workplace : Angry woman makes face behind person over white

I tell my clients that I can ‘lead the horses to water, but can’t make them drink.’ It’s up to the individuals to make the choice to be professional — or not.”


A couple of early comments to our “Zero Tolerance” post earlier this week drew our attention because of the insights shared.  We think that these two comments can be a central point around which an educational discussion/debate can coalesce.

no discrimination : equality equal rights and opportunities for all women man disabled black and white solidarity discrimination of people with disability or physical and mental handicap

Lisa Hutchin, Contractor – Labor Relations in Sacramento, CA:

“I think we can have a zero tolerance policy, but that doesn’t absolve management from the obligation to use some good common sense. This is an area where we have completely gone bonkers. It’s the ‘go to the freezer and get the pizza dough’ mentality.  Without using a reasonable person standard and common sense, zero tolerance policies become the escape for anyone who doesn’t want to have to make a decision (“It says so RIGHT HERE. I don’t have a choice”).

I have seen this problem escalate over the years and have to wonder what we have gotten ourselves into. Whatever happened to mitigation, for example? Managers get a pretty decent paycheck for using their heads and yet they either use the zero tolerance policy as an excuse not to or they’re afraid of the repercussions of standing up for their decisions. Whatever happened to conducting a full and complete investigation before making a decision – as in, use your head?

For example, schools and businesses should have a zero tolerance policy for workplace violence. That doesn’t mean you suspend an eight year old for chewing his pop tart into an “L” shape. Nor does it mean that AutoZone should terminate an employee who ran out to his car, grabbed his firearm and stopped an armed robbery.”

zero tolerance : Zero Tolerance Warning Sign

Lisa Chase, HR futurist in the Minneapolis-St. Paul area:

“What is tolerated within an organization is the problem of the managers and executives. I think the ‘reasonable person’ should become a general guideline. If a reasonable person finds actions, speech, or behavior offensive then it is and must be dealt with. We have proven, I think, over the years since the civil rights era that legislation does not stop discrimination. But each successive generation has become less tolerant of it in themselves and others.

Overt acts must be dealt with. Clear policies regarding harassment and discrimination must be on record. Training must be provided and managers must step up to the challenge when faced with these situations. The only way to eliminate this behavior is to make it intolerable within the organization. Regardless of legislation. Discrimination and harassment isn’t wrong because it is illegal – it is wrong because it is cruel.”